Ex parte Newman. EX PARTE NEWMAN. Per Terry, C. J.-The Act of April, 1858, "for the better observance of the Sabbath," is in conflict with the first and fourth sections of article first of the Constitution of this State, and is therefore void. The Constitution, when it forbids discrimination or preference in religion, does not mean merely to guarantee toleration, but religious liberty in its largest sense, and a perfect equality without distinction between religious sects. The enforced observance of a day held sacred by one of these sects, is a discrimination in favor of that sect, and a violation of the religious freedom of the others. Considered as a municipal regulation, the Legislature has no right to forbid or enjoin the lawful pursuit of a lawful occupation on one day of the week, any more than it can forbid it altogether. The governmental power only extends to restraining each one in the freedom of his conduct so as to secure perfect protection to all others from every species of danger to person, health, and property; that each individual shall be required so to use his own as not to inflict injury upon his neighbor; and these seem to be all the immunities which can be justly claimed by one portion of society from another, under a government of constitutional limitation. The act in question is in intention and effect a discrimination in favor of one religious profession over all others, and as such is in violation of the Constitution. Per Burnett, J.-Our constitutional theory regards all religions, as such, as equally entitled to protection, and equally unentitled to preference. When there is no ground or necessity upon which a principle can rest but a religious one, then the Constitution steps in and says that it shall not be enforced by authority of law. The Sunday law violates this provision of the Constitution, because it establishes a compulsory religious observance. It violates as much the religious freedom of the Christian as of the Jew. The principle is the same, whether the act compels us to do what we wish to do or what we wish not to do. If the Legislature has the power to establish a day of compulsory rest, it has the right to select the particular day. The protection of the Constitution extends to every individual or to none. It is the individual that is intended to be protected. Every citizen has the right to vote and worship as he pleases, without having his motives impeached in any tribunal of the State. When the citizen is sought to be compelled by the Legislature to do any affirmative religious act, or to refrain from doing anything because it violates simply a religious principle or observance, the act is unconstitutional. The constitutional question is a naked question of legislative power, and the inquiry as to the reasons which operated on the minds of members in voting for the measure, is wholly immaterial. If section first of article first of the Constitution asserts a principle not susceptible of practical application, then it may admit of a question whether any principle asserted in the declaration of rights can be the subject of judicial enforcement. And if such a position be true that the rights of property can not be enforced by the Courts against an act of the Legislature, a power is then conceded which renders the provisions of the other sections wholly inoperative. The right to possess and protect property is not more clearly protected by the Constitution, than the right to acquire it. The right to acquire is the right to use the proper means to attain the end; and the use of such means, can not be prohibited by the Legislature, except the peace and safety of the State require it. Free agents must be left free, as to themselves. If they can not be trusted to regulate their own labor, its times, and quantity, it is difficult to trust them to make their own contracts. If the Legislature can prescribe the days of rest for them, it would seem that the same power can prescribe the hours to work, rest, and eat. Per Field, J., dissenting.-The "Act to provide for the better observance of the Sabbath," is not in conflict with the fourth section of article one of the Constitution, which declares that "the free exercise and enjoyment of religious profession and worship withont discrimination or preference, shall for ever be allowed in this State." Ex parte Newman. The act establishes, as a civil regulation, a day of rest from secular pursuits, and that is its only scope and purpose. It treats of business matters, not religious duties. In limiting its command to secular pursuits it necessarily leaves religious profession and worship free. It is not the province of the judiciary to pass upon the wisdom and policy of legislation; and when it does so, it usurps a power not conferred by the Constitution. The object of the act is not to protect those who can rest at their pleasure, but to afford rest to those who need it, and who, from the conditions of society, could not otherwise obtain it. The title of the act, and the description of the day, will not warrant the conclusion that the intention of the law is to enforce the Sabbath as a religious institution. The terms "Christian Sabbath or Sunday," are used simply to designate the day selected by the Legislature. The same construction would obtain and the same result follow, if any other terms were employed, as "the Lord's day, commonly called Sunday," "the Sabbath day," or "the first day of the week," which are found in similar statutes of other States. That the law operates with inconvenience to some is no argument against its constitutionality. Such inconvenience is an incident to all general laws. The title of an act is never held to control the legislative intent. This intent is to be sought in the purview or body of the act; and when the language in this part is clear and unambiguous, no other part can avail to contradict or control it. The title can be resorted to only in cases of ambiguity, and is then of slight value. Nor is this well-settled rule as to the effect of a title, in any degree changed by the twenty-fifth section of article four of the Constitution, which requires that "every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title." This section is merely directory, and does not nullify laws passed in violation of it. In determining the question of power in the Legislature to pass the act, the Court can not consider whether that power was wisely or unwisely exercised, or from pure or impure motives. The act is not in conflict with the first section of article one of the Constitution, which declares that "all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness." The rights enumerated in this section are to be enjoyed in a constitutional government in subordination to the general laws of the State. This section was never intended to inhibit legislation on the rights enumerated. The Legislature possesses the power to legislate for the good order, the peace, welfare, and happiness of society. The means by which these ends are to be effected are left to its discretion, but because the discretion may be abused its acts are not for that reason void. It is to be supposed that the members of the Legislature will exercise some wisdom in If they do not, the remedy is with the people. Frequent elections by the people furnish the only protection against the abuse of acknowledged legislative its acts. power. The right to acquire property may be regulated for the public good, though thereby the facility of acquisition is lessened. The judiciary does not possess the right to supervise the exercise of legislative discretion in matters of mere expediency, and the assumption of such right would be usurpation. The "Act to provide for the better observance of the Sabbath, approved April 10, 1858," is constitutional. HABEAS CORPUS. Newman, the petitioner, was tried, and convicted before a justice of the peace of the city of Sacramento, for a violation of the act of April 10th, 1858, entitled "An Act to provide for the better observance of the Sabbath," and was sentenced to pay a fine of fifty dollars, and the costs of the prosecution-twenty dol Ex parte Newman. lars-or, in default of the payment of such fine and costs, to be imprisoned thirty-five days. Failing to pay the fine and costs imposed, he was imprisoned. The petitioner is an Israelite, engaged in the business of selling clothing, at Sacramento. The offence of which he was convicted was the sale of goods on Sunday. Upon his imprisonment, he petitioned this Court for a writ of habeas corpus, and prayed that he might be discharged from imprisonment, on the ground of the illegality of the same, by reason of the unconstitutionality of the act. The writ was issued, and on the return thereof, the petitioner was discharged. Heydenfeldt and Welty for Petitioner. Attorney-General and District-Attorney Morrison for the People. TERRY, C. J.-The petitioner was tried and convicted before a justice of the peace for a violation of the act of April, 1858, entitled "An Act for the better observance of the Sabbath," and, upon his failure to pay the fine imposed, was imprisoned. The counsel for petitioner moves his discharge, on the ground that the act under which these proceedings were had is in conflict with the first and fourth sections of the first article of the State Constitution, and therefore void. The first section declares "all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness." The fourth section declares "the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall for ever be allowed in this State." The questions which arise in the consideration of the case, are: 1. Does the act of the Legislature make a discrimination or preference favorable to one religious profession, or is it a mere civil rule of conduct? 2. Has the Legislature the power to enact a municipal regulation which enforces upon the citizen a compulsory abstinence from his ordinary lawful and peaceable avocations for one day in the week? There is no expression in the act under consideration which can lead to the conclusion that it was intended as a civil rule, as contradistinguished from a law for the benefit of religion. It is entitled "An Act for the better observance of the Sabbath," and the prohibitions in the body of the act are confined to the "Christian Sabbath." It is, however, contended, on the authority of some of the decisions of other States, that notwithstanding the pointed language Ex parte Newman. of the act, it may be construed into a civil rule of action, and that the result would be the same, even if the language were essentially different. The fault of this argument is that it is opposed to the universally admitted rule which requires a law to be construed according to the intention of the law-maker, and this intention to be gathered from the language of the law, according to its plain and common acceptation. It is contended that a civil rule requiring the devotion of oneseventh of the time to repose is an absolute necessity, and the want of it has been dilated upon as a great evil to society. But have the Legislature so considered it? Such an assumption is not warranted by anything contained in the Sunday law. On the contrary, the intention which pervades the whole act is to enforce, as a religious institution, the observance of a day held sacred by the followers of one faith, and entirely disregarded by all the other denominations within the State. The whole scope of the act is expressive of an intention on the part of the Legislature to require a periodical cessation from ordinary pursuits, not as a civil duty, necessary for the repression of any existing evil, but in furtherance of the interests, and in aid of the devotions of those who profess the Christian religion. Several authorities, affirming the validity of similar statutes, have been cited from the reports of other States. While we entertain a profound respect for the Courts of our sister States, we do not feel called upon to yield our convictions of right to a blind adherence to precedent; especially when they are, in our opinion, opposed to principle; and the reasoning by which they are endeavored to be supported is by no means satisfactory or convincing. In Bryan v. Berry, (6 Cal., 398,) in reference to the decisions of other States, we said, "decided cases are, in some sense, evidence of what the law is. We say in some sense, because it is not so much the decision as it is the reasoning upon which the decision is based, which makes it authority, and requires it to be respected.” It will be unnecessary to examine all the cases cited by the district-attorney. The two leading cases in which the question is more elaborately discussed than in the others, are the cases of Sepect v. The Commonwealth, (8 Barr, 313,) and The City Council v. Benjamin, (2 Schobart, 508,) decided respectively by the Supreme Courts of Pennsylvania and South Carolina.. These decisions are based upon the ground that the statutes requiring the observance of the Christian Sabbath established merely a civil rule, and make no discrimination or preference in favor of any religion. By an examination of these cases, it will be seen that the position taken rests in mere assertion, and that not a single argument is adduced to prove that a preference in favor of the Christian religion is not given by the law. In the case in Ex parte Newman. 8 Barr, the Court said: "It (the law) intermeddles not with the natural and indefeasible right of all men to worship Almighty God according to the dictates of their own consciences; it compels none to attend, erect, or support any place of worship, or to maintain any ministry, against his consent; it pretends not to control or interfere with the rights of conscience, and it establishes no preference for any religious establishment or mode of worship." This is the substance of the arguments to show that these laws establish no preference. The last clause in the extract asserts the proposition broadly; but it is surely no legitimate conclusion from what precedes it, and must be taken as the plainest example of petitio principii. That which precedes it establishes that the law does not destroy religious toleration, but that is all. Now, does our Constitution, when it forbids discrimination or preference in religion, mean merely to guaranty toleration? For that, in effect, is all which the cases cited seem to award, as the right of a citizen. In a community composed of persons of various religious denominations, having different days of worship, each considering his own as sacred from secular employment, all being equally considered and protected under the Constitution, a law is passed which in effect recognizes the sacred character of one of these days, by compelling all others to abstain from secular employment, which is precisely one of the modes in which its observance is manifested and required by the creed of that sect to which it belongs as a Sabbath. Is not this a discrimination in favor of the one? Does it require more than an appeal to one's common sense to decide that this is a preference? And when the Jew, or Seventh-Day Christian complains of this, is it any answer to say, your conscience is not constrained, you are not compelled to worship or to perform religious rites on that day, nor forbidden to keep holy the day which you esteem as a Sabbath? We think not, however high the authority which decides otherwise. When our liberties were acquired, our republican form of government adopted, and our Constitution framed, we deemed that we had attained not only toleration, but religious liberty in its largest sense-a complete separation between Church and State, and a perfect equality without distinction between all religious sects. "Our Government," said Mr. Johnson, in his celebrated Sunday-mail report, "is a civil and not a religious institution; whatever may be the religious sentiments of citizens, and however variant, they are alike entitled to protection from the government, so long as they do not invade the rights of others." And again, dwelling upon the danger of applying the powers of government to the furtherance and support of sectarian objects, he remarks, in language which should not be forgotten, but which ought to be deeply impressed on the minds of all who |